PUBLISH

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

March 3, 2014

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

ANTELOPE COAL COMPANY/RIO

TINTO ENERGY AMERICA,
Petitioner,
v.
No. 12-9590
ROLLAND E. GOODIN; DIRECTOR,
OFFICE OF WORKERS
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

ON PETITION FOR REVIEW OF A DECISION AND ORDER

OF THE BENEFITS REVIEW BOARD,
UNITED STATES DEPARTMENT OF LABOR
(No. 11-0843 BLA)

William S. Mattingly, Jackson Kelly PLLC, Morgantown, West Virginia, appearing for
Petitioner.
Jared L. Bramwell, Kelly & Bramwell, Draper, Utah, appearing for Respondent Rolland
E. Goodin.
Sean Bajkowski, Counsel for Appellate Litigation (M. Patricia Smith, Solicitor of Labor,
Rae Ellen Frank James, Associate Solicitor, and Rita A. Roppolo, Attorney, with him on
the briefs), United States Department of Labor, Office of the Solicitor, Washington, DC,
appearing for Respondent United States Department of Labor.

Before KELLY, McKAY, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Rolland E. Goodin worked at surface coal mines for 25 years and smoked
cigarettes for more than 40 years. He developed a respiratory condition and filed for
benefits under the Black Lung Benefits Act (BLBA). 30 U.S.C. 901, et seq. An
Administrative Law Judge (ALJ) awarded Mr. Goodin benefits. His employer,
Antelope Coal Company/Rio Tinto Energy America (Antelope), appealed, and the
Department of Labor Benefits Review Board (Review Board) affirmed the grant of
benefits. Antelope filed this petition for review of the Review Boards order.
Antelopes primary argument is that the ALJ wrongly limited its options to rebut a
regulatory presumption that Mr. Goodins work as a coal miner caused his respiratory
condition. Specifically, it argues 20 C.F.R. 718.305(d),1 a rule limiting the type of
evidence that may be used for rebuttal, should not apply to coal mine operators like
Antelope. Alternatively, Antelope argues even if the rule applies, the ALJs findings and
explanation concerning the cause of Mr. Goodins disability were incomplete. Exercising
jurisdiction under 33 U.S.C. 921(a), we deny Antelopes petition.
I. BACKGROUND
We begin with the relevant statutes and regulations and then turn to the facts and
1

A revision of this regulation became effective October 25, 2013. See infra Part
I.A.5. We apply the revised version for reasons noted later in this opinion. See infra Part
II.B. Unless otherwise indicated, all citations to the C.F.R. are to the 2013 regulations.
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procedural history of Mr. Goodins case.

A. Legal Background
Congress enacted the BLBA in 1969 to compensate miners who develop
pneumoconiosisblack lung disease. The BLBA provides benefits to coal miners who
become totally disabled from pneumoconiosis. Five parts of the BLBA and regulations
are particularly relevant here.
1. Elements of a Claim
To obtain benefits under the BLBA, a claimant must prove: (1) he or she suffers
from pneumoconiosis; (2) the pneumoconiosis arose out of coal mining employment; (3)
he or she is totally disabled due to a respiratory or pulmonary impairment; and (4)
pneumoconiosis is a substantially contributing cause of his or her total disability. See 20
C.F.R. 725.202(d)(2), 718.204(c)(1); 30 U.S.C. 902, 921; Energy West Mining Co.
v. Oliver, 555 F.3d 1211, 1214 (10th Cir. 2009).
2. Pneumoconiosis Defined
The BLBA recognizes two types of pneumoconiosis: clinical and legal. Clinical
pneumoconiosis refers to diseases the medical community recognizes as pneumoconiosis,
which includes conditions characterized by . . . the fibrotic reaction of the lung tissue
to . . . deposition [of particulate matter] caused by dust exposure in coal mine
employment. 20 C.F.R. 718.201(a)(1).
Legal pneumoconiosis, added in 1978, 30 U.S.C. 902(b), is any chronic lung

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disease or impairment and its sequelae2 arising out of coal mine employment. This
definition includes, but is not limited to, any chronic restrictive or obstructive pulmonary
disease arising out of coal mine employment. 20 C.F.R. 718.201(a)(2). This
encompasses a broader class of lung diseases that are not pneumoconiosis as the term is
used by the medical community. Andersen v. Dir., OWCP, 455 F.3d 1102, 1104 (10th
Cir. 2006). Arising out of coal mine employment means the disease or impairment is
significantly related to, or substantially aggravated by, dust exposure in coal mine
employment. 20 C.F.R. 718.201(b).
3. The 15-year Presumption
The BLBA created a presumption that a miner is disabled due to pneumoconiosis
when he or she has worked for 15 years in underground coal mines or substantially
similar conditions and is totally disabled from a respiratory or pulmonary condition (the
15-year presumption). In other words, a miner who proves 15 years of coal mine work
and total disability is entitled to a presumption that the remaining elements of his claim
are established. This presumption expired in 1982. 30 U.S.C. 921(c)(4) (2006).
In 2010, Congress adopted the Byrd Amendments to the BLBA as part of the
Affordable Care Act (ACA), Pub. L. No. 111148, 1556, 124 Stat. 119, 260 (2010).
The amendments reinstated the 15-year presumption for claims filed after January 1,
2

Sequelae is the aftereffect of disease, condition, or injury or its secondary

result. Merriam-Webster.com, http://www.merriam-webster.com/dictionary/sequela
(last accessed Dec. 9, 2013).

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2005. See 30 U.S.C. 921(c)(4) (2012).3

Section 921 provides that the Secretary of Labor can rebut the 15-year
presumption only by proving (1) the claimant does not have pneumoconiosis, or (2) the
claimants impairment did not arise out of, or in connection with, employment in a coal
mine. Id. 921(c)(4). In 1976, the Supreme Court ruled the rebuttal limitations apply
only to the Secretary and do not apply to coal mine operators. Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1, 34-37 (1976).4

The statute reads in relevant part:

[I]f a miner was employed for fifteen years or more in one or more
underground coal mines, and if . . . a chest roentgenogram [(x-ray)]
submitted in connection with such miners . . . claim . . . is interpreted as
negative . . . and if other evidence demonstrates the existence of a totally
disabling respiratory or pulmonary impairment, then there shall be a
rebuttable presumption that such miner is totally disabled due to
pneumoconiosis. . . . The Secretary [of Labor] shall not apply . . . the
requirement . . . that the miner work in an underground mine where he
determines that conditions of a miners employment in a coal mine other
than an underground mine were substantially similar to conditions in an
underground mine. The Secretary may rebut such presumption only by
establishing that (A) such miner does not, or did not, have pneumoconiosis,
or that (B) his respiratory or pulmonary impairment did not arise out of, or
in connection with, employment in a coal mine.
30 U.S.C. 921(c)(4). We note that a claimant with a positive x-ray is
eligible for a different presumption. Id. at 921(c)(3).
4

The parties disagree whether Usery is still valid law in light of subsequent
amendments to the BLBA. We do not resolve this question because we conclude that
Mr. Goodin would have prevailed even without the rebuttal limitations.

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4. Rule-out Standard
The U.S. Department of Labor (the Department) maintains that a rule-out
standard applies to the second method of rebuttal, requiring proof that rules out any
connection between the claimants disability and coal mine employment. See
Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act:
Determining Coal Miners and Survivors Entitlement to Benefits, 78 Fed. Reg. 59,101,
59,107 (Sept. 25, 2013). Some courts have agreed. See, e.g., Peabody Coal Co. v. Hill,
123 F.3d 412, 417-18 & n.9 (6th Cir. 1997); Rose v. Clinchfield Coal Co., 614 F.2d 936,
939 (4th Cir. 1980). This standard derives from 20 C.F.R. 718.305(d) (2010), which,
before its revision in 2013, stated, Where the cause of death or total disability did not
arise in whole or in part out of dust exposure in the miner's coal mine employment . . .
the presumption will be considered rebutted. Id. (emphasis added).5
Although we have not addressed whether the rule-out standard applies to rebuttal
of the 15-year presumption, we have held that a rule-out standard applied to a similar
presumption of pneumoconiosis arising from proof of total disability and 10 years of coal
mine employment. See Rosebud Coal Sales Co. v. Wiegand, 831 F.2d 926, 928-29 (10th
Cir. 1987). That presumption was based on a now-defunct interim regulation that
contained identical language to 718.305(d) (2010). See id. To rebut that presumption,
5

As discussed below, a final rule effective October 25, 2013, changed the
language of this provision. But the revised language has the same effectrequiring the
rebutting party to establish that no part of the miners . . . disability was caused by
pneumoconiosis . . . . 20 C.F.R. 718.305(d)(1)(ii).
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we said employers must show that total disability or death of the miner did not arise in
whole or in part out of coal mine employment. Id. at 928 (emphasis added) (quoting
interim regulation 20 C.F.R. 727.203(b)(3) (1987)). The employer must rule out any
relationship between the disability and the coal mine employment. Mangus v. Dir.,
OWCP, 882 F.2d 1527, 1529 (10th Cir. 1989) (citing Rosebud Coal Sales, 831 F.2d at
928)). We see no reason to interpret 718.305(d) (2010) or the revised
718.305(d)(1)(ii) (2013) any differently and hold the rule-out standard applies here.
See Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1071 n.5 (6th Cir. 2013) (noting the
rule-out standard is consistent with the revised regulation).
5. The October 25, 2013 Final Rule
After Congress enacted the ACA, the Department issued a Notice of Proposed
Rulemaking to implement the Byrd Amendments. See Regulations Implementing the
Byrd Amendments to the Black Lung Benefits Act: Determining Coal Miners and
Survivors Entitlement to Benefits, 77 Fed. Reg. 19,455 (proposed Mar. 30, 2012). The
comment period closed May 29, 2012. Id. at 19,456. The Department issued its Final
Rule on September 25, 2013, with an effective date of October 25, 2013. See
Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act:
Determining Coal Miners and Survivors Entitlement to Benefits, 78 Fed. Reg. 59,101

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(Sept. 25, 2013).6 The Final Rule revised two sections of the regulations that are relevant
to this case: 20 C.F.R. 718.305(b)(2),7 which defines when working conditions are
substantially similar to underground mining; and 718.305(d)(1),8 which governs the
permissible methods of rebuttal.
B. Factual and Procedural History
Mr. Goodin worked at surface coal mines, including the Antelope Coal Mine in
Wyoming, from 1981 to 2006, when he retired because of respiratory health issues. On
May 14, 2007, Mr. Goodin applied for BLBA benefits. As Mr. Goodins last employer,
6

Mr. Goodin filed his claim in 2007, after the January 1, 2005 filing date required
by the Byrd Amendments. The relevant procedural history in this casethe ALJs
August 2011 decision, the Review Boards September 2012 ruling, and Antelopes
November 2012 notice of appeal to this courttook place after the Byrd Amendments
were enacted, but before the Department issued its Final Rule.
7

This provision states, The conditions in a mine other than an underground mine
will be considered substantially similar to those in an underground mine if the claimant
demonstrates that the miner was regularly exposed to coal-mine dust while working
there. 20 C.F.R. 718.305(b)(2).
8

This provision states,

In a claim filed by a miner, the party opposing entitlement may rebut the
presumption by-(i) Establishing both that the miner does not, or did not, have:
(A) Legal pneumoconiosis as defined in 718.201(a)(2); and
(B) Clinical pneumoconiosis as defined in 718.201(a)(1),
arising out of coal mine employment (see 718.203); or
(ii) Establishing that no part of the miner's respiratory or pulmonary
total disability was caused by pneumoconiosis as defined in
718.201.
20 C.F.R. 718.305(d)(1).
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Antelope is the named operator for his claim. A Department ALJ heard his case in
Casper, Wyoming on October 20, 2010.
1. Evidence Presented to the ALJ
At the hearing, Mr. Goodin testified in person about his working conditions at
surface coal mines in the various positions he held, which included warehouse worker for
four to five years, equipment operator for 11-12 years, and equipment oiler in the mine
pit for nine years. We will discuss Mr. Goodins working conditions in more detail later
in the opinion. He also testified about his forty-year smoking history, stating that he
started smoking in his 20s, tried to quit multiple times, and successfully quit in 2004 or
2005. He smoked, on average, a pack of cigarettes each day.
The parties introduced conflicting medical evidence regarding (1) readings of
chest x-rays and CT scans; (2) results from pulmonary function tests and arterial blood
gas studies; (3) interpretations of patient history; (4) statistical reasoning; and
(5) diagnoses.
a. Mr. Goodins Medical Evidence
Mr. Goodin submitted Dr. Andras Bodonis and Dr. Cecile Roses medical reports
and deposition testimony, Dr. Donald Smiths treatment records, and additional x-ray and
CT scan interpretations.
Dr. Bodoni, board-certified in internal medicine, examined Mr. Goodin to satisfy
the Departments obligation under 30 U.S.C. 923(b) to provide each claimant-miner
with an opportunity to substantiate his or her claim by means of a complete pulmonary
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evaluation. See 30 U.S.C. 923(b). Dr. Bodoni diagnosed Mr. Goodin with
pneumoconiosis from exposure to coal dust and with total disability from a combination
of pneumoconiosis and another respiratory disease. Appx., Vol. I at 17. He based this
diagnosis on a physical examination, patient history, and his positive x-ray reading. Id. at
41. Dr. Bodoni opined that although Mr. Goodin had other respiratory conditions, none
of them constituted the entire disability without pneumoconiosis. Id. Dr. Bodoni
testified it was impossible to tell the difference in impact between coal mine exposure
and smoking. Id. at 32-33.
Dr. Roseboard-certified in pulmonary medicine, general
preventive/occupational medicine, and internal medicine, as well as a B-reader9
examined Mr. Goodin at his request. She based her opinion on a physical examination,
patient history, and a positive x-ray and CT scan. Appx., Vol. I at 78-79. She also
reviewed the medical records and opinions from Dr. Bodoni and Antelopes primary
medical experts. She concluded Mr. Goodin was totally disabled from his respiratory
condition, which resulted, at least in part, from his previous exposure to coal mine dust.
Id. at 84. Dr. Rose recognized that multiple factors, including smoking, caused Mr.
Goodins respiratory condition, but still concluded that coal mining was a substantially
contributing factor. Id. at 83-84. Dr. Rose disagreed with Antelopes experts and filed a
supplemental report after their depositions to rebut their testimony.
9

A B-reader is a doctor who is certified to read x-rays for pneumoconiosis.

Appx., Vol. II at 276 n.8.
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Dr. Smith was Mr. Goodins treating physician. Mr. Goodin submitted Dr.
Smiths treatment notes, which said, The patient has had abnormal lung function for
years and probably his recent exposures caused a mild exacerbation. The radiographic
picture is certainly not typical for Coal Workers pneumoconiosis but the patient may
have a slowly active fibrosis in addition to the emphysema. Appx., Vol. II at 267.
Mr. Goodin submitted additional interpretations of his tests. Dr. Afzal Ahmed
examined three admissible x-rays10 and found opacities in all zones indicating
pneumoconiosis. Id. at 277. Dr. David Lynch reviewed a 2010 CT scan that Dr. Rose
ordered. Id. at 279. Dr. Lynch determined that although the CT scan did not show
typical features of coal workers [sic] pneumoconiosis, it could certainly be related to coal
dust exposure. Alternatively, this could be secondary to cigarette smoking. Moderate
emphysema may be related to coal dust exposure and/or smoking. Appx., Vol. I at 93.
b. Antelopes Medical Evidence
Antelope submitted Drs. Lawrence Repshers and Robert Farneys reports and
deposition testimony as well as additional interpretations of Mr. Goodins x-rays and CT
scans.
Dr. Repsher, board-certified in internal medicine and pulmonary disease and a Breader, examined Mr. Goodin at Antelopes request. He concluded that Mr. Goodins
respiratory disease was chronic obstructive pulmonary disease (COPD) due to heavy
10

Dr. Ahmed reviewed a fourth x-ray, but it exceeded the number of x-rays Mr.
Goodin could submit and the ALJ did not consider it.
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smoking, noting that Mr. Goodins chest x-ray showed no evidence of pneumoconiosis.
Appx., Vol. II at 262. He based his opinion on Mr. Goodins chest x-ray and a CT scan
showing opacities consistent with smoking but not typical of pneumoconiosis. Id. He
also explained that although a few coal miners will develop COPD from coal mine dust,
statistically in this individual coal miner, to an overwhelming probability, any detectable
COPD would be the result of cigarette smoking and/or asthma, but not the result of the
inhalation of coal mine dust. Appx., Vol. I at 48. He thought Dr. Roses pulmonary
function tests were not reliable and probably invalid because the results were unlikely.
Dr. Repsher also concluded Mr. Goodins pulmonary capacity is likely sufficient to
perform his last coal mining job, and therefore Mr. Goodin is not totally disabled. Appx.,
Vol. II at 275.
Dr. Farney, board-certified in internal medicine, pulmonary medicine, and sleep
medicine, examined Mr. Goodin at Antelopes request. Unlike Dr. Repsher, he agreed
with Dr. Rose that Mr. Goodin is totally and permanently disabled, but stated that Mr.
Goodin does not have pneumoconiosis. Appx., Vol. II at 264. Instead, he diagnosed Mr.
Goodin with COPD from smoking. Id. He stated that coal dust exposure can cause
COPD, but the degree of COPD from coal dust is usually mild unless the dust exposure
was high, in which case a chest x-ray would be abnormal. Id. at 264-65. Dr. Farney
ruled out pneumoconiosis from coal dust exposure because the risk of developing coal
workers [pneumoconiosis] is less in surface mining, Appx., Vol. I at 64, smoking has a
higher risk of respiratory conditions than coal dust exposure, and Mr. Goodins chest
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x-ray was negative for pneumoconiosis.

Antelope also submitted the following interpretations of Mr. Goodins tests. Dr.
Cristopher Meyer interpreted one x-ray (which Dr. Ahmed also reviewed) as negative for
pneumoconiosis. Appx., Vol. II at 277. Dr. Jerome Wiot interpreted another x-ray as
also negative for pneumoconiosis. Id. Dr. Wiot analyzed a 2008 CT scan, concluding,
There is no evidence of coal workers pneumoconiosis. There is mild emphysema. There
is mild . . . fibrosis . . . [that] is not a manifestation of coal dust exposure. Id. at 279.
Finally, Dr. Meyer reviewed Mr. Goodins 2010 CT scan, concluding that although
there are many causes of pulmonary fibrosis, th[e] pattern is not typical of coal workers
pneumoconiosis . . . . Appx., Vol. I at 90-91.11
* * * *
In summary, three of the four doctors, Drs. Bodoni, Rose, and Repsher, agreed Mr.
Goodin was totally disabled. They disagreed as to the cause. Mr. Goodins experts, Drs.
Bodoni and Rose, concluded his disability resulted, at least in part, from pneumoconiosis
due to coal mining. Antelopes experts, Drs. Repsher and Farney, concluded Mr.
Goodins disability may have resulted from COPD caused by heavy smoking. They
based this conclusion on test results not typical for pneumoconiosis and Mr. Goodins
health history. They also opined that Mr. Goodins work at a surface mine made

11

Antelope argues the ALJ improperly failed to consider Dr. Meyers

interpretation of this CT scan because the ALJ did not specifically mention it in his
analysis. This issue is addressed below.
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pneumoconiosis statistically improbable because (1) most miners will not develop
chronic COPD from coal dust exposure, and (2) because the risk of developing
pneumoconiosis from surface mining is less than from underground mining due to lower
coal dust exposure.
2. The ALJs Decision
The ALJ found Mr. Goodin (1) had worked for more than 15 years in surface
mining conditions substantially similar to underground mining and (2) was totally
disabled from his respiratory impairment. Appx., Vol. II at 271, 275. These findings
established the 15-year presumption. The ALJ stated Antelope had the burden under
921 to rebut this presumption by a preponderance of the evidence showing (1) Mr.
Goodin did not have pneumoconiosis or (2) his disability did not arise out of coal mine
employment. Id. at 276.
The ALJ held that Antelope had failed to rebut the presumption and awarded Mr.
Goodin BLBA benefits. Id. at 283. He found the x-ray evidence to be in equipoise and
Dr. Roses report and conclusions to be persuasive.12 Id. at 278, 281, 283. He found Drs.
Repshers and Farneys statistical reasoning unpersuasive because they failed to show
why Mr. Goodin was not within the subgroup of individuals who suffer from
pneumoconiosis caused by surface mining conditions or why coal dust could not have
aggravated the COPD the doctors attributed to smoking. Id. at 282-83. Accordingly, the
12

The ALJ did not place much weight on Dr. Bodonis conclusions due to his
relative lack of credentials.
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ALJ concluded, Antelope has not rebutted the presumption . . . by showing a

preponderance of the evidence that [Mr. Goodin] does not have pneumoconiosis or that
the pneumoconiosis did not arise out of his coal mine employment . . . . Id. at 283.
3. Subsequent Proceedings
The Benefits Review Board affirmed the ALJs decision on September 27, 2012.
It determined the ALJ had applied the proper legal standard, substantial evidence
supported his factual findings, and the decision contained no reversible error.
Antelope petitioned this court, challenging the legal standard applied to its rebuttal
evidence, the test for determining substantial similarity to underground coal mining
conditions, the completeness of Mr. Goodins Department-provided pulmonary exam, the
ALJs consideration of medical evidence, and the completeness of the ALJs analysis.
On the day of oral argument, September 25, 2013, the Department issued its Final
Rule implementing and interpreting statutory changes made by the ACA, which became
effective on October 25, 2013. The parties submitted supplemental briefing on the
applicability and impact of the Final Rule on this case.
II. DISCUSSION
A. Standard of Review
For questions of fact, we determine whether the Review Board properly
concluded that the ALJs decision was supported by substantial evidence. Hansen v.

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Dir., OWCP, 984 F.2d 364, 368 (10th Cir. 1993).13 Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
We do not reweigh the evidence, but instead ask if, based on the record as a
whole, substantial evidence is present to support the ALJs decision. See Energy West
Min. Co. v. Oliver, 555 F.3d 1211, 1217 (10th Cir. 2009). [T]he task of weighing
conflicting medical evidence is within the sole province of the ALJ. Hansen, 984 F.2d
at 368. [W]here medical professionals . . . disagree[], the trier of fact is in a unique
position to determine credibility and weigh the evidence. Id. at 370.
For questions of law, we review the Review Boards decision de novo. See
Mangus v. Dir., OWCP, 882 F.2d 1527, 1530 (10th Cir. 1989). We give no deference to
the Review Boards interpretation, see Lukman v. Dir., OWCP, 896 F.2d 1248, 1251
(10th Cir. 1990), however, we give considerable weight to the Department[s] . . .
construction of the statute it is entrusted to administer and substantial deference to the
agencys reasonable interpretation of its own regulations, Andersen, 455 F.3d at 1103
(citations omitted), unless such interpretation is plainly erroneous or inconsistent with
the regulation, Mullins Coal Co. v. Dir., OWCP, 484 U.S. 135, 159 (1987); see also
Auer v. Robbins, 519 U.S. 452, 461 (1997).
13

Although we are formally reviewing the Review Boards decision, because the
standard of review for questions of fact requires us to determine whether the ALJs
decision is supported by substantial evidence, we focus on the ALJs decision and
analysis.
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B. Final Rule Applicability

Before we discuss the ALJs and Review Boards determinations, we first address
whether relevant provisions of the Final Rule, which became effective October 25, 2013,
apply to this case. They do.
The relevant provisions concern (1) how to establish the 15-year presumption by
showing above-ground mining conditions are substantially similar to underground mine
conditions, 20 C.F.R. 718.305(b)(2), and (2) how to rebut the presumption, 20 C.F.R.
718.305(d)(1).14 These provisions apply because they do not change existing law and
are substantially consistent with prior regulations and agency practices. See Natl Mining
Assn v. Dept of Labor, 292 F.3d 849, 859 (D.C. Cir. 2002); Farmers Tel. Co., Inc. v.
FCC, 184 F.3d 1241, 1250 (10th Cir. 1999) (stating an interpretive rule may operate
retrospectively when it merely clarifies or explains existing law or regulations).
If a new regulation is substantively consistent with prior regulations or prior
agency practices, and has been accepted by all Courts of Appeals to consider the issue,
then its application to pending cases is proper. Natl Mining, 292 F.3d 860. Here,
neither provision changes the substantive law because each merely clarifies the
Departments position and conforms to circuit court cases.
Section 718.305(b)(2) addresses when a surface miners working conditions are
substantially similar to underground mining working conditions. The only circuit to

14

The rules are quoted in full in footnotes 7 and 8, supra.

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address this issue has long held that surface miners do not need to provide evidence of
underground mining conditions to compare with their own working conditions. See, e.g.,
Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 479 (7th Cir. 2001); Blakley
v. Amax Coal Co., 54 F.3d 1313, 1319 (7th Cir. 1995); Dir., OWCP v. Midland Coal Co.,
855 F.2d 509, 512 (7th Cir. 1988). These decisions validate the Departments
longstanding position that consistently dusty working conditions are sufficiently similar
to underground mining conditions. See, e.g., Midland Coal, 855 F.2d at 511-12. The
revised regulation codifies that interpretation by making regular exposure to coal mine
dust the standard to determine substantial similarity of surface working conditions to
those in underground mines. See 20 C.F.R. 718.305(b)(2).
Similar reasoning applies to revised 718.305(d)(1), which outlines the
permissible methods of rebutting the 15-year presumption. The changes to
718.305(d)(1) also comport with the Departments ongoing interpretation and do not
substantively change the law. The original regulation required, for rebuttal, proof the
disability did not arise from coal mine employment. 15 See, e.g., Blakley, 54 F.3d 1313 at

15

The original language states, The presumption may be rebutted only by

establishing that the miner does not, or did not have pneumoconiosis, or that his or her
respiratory or pulmonary impairment did not arise out of, or in connection with,
employment in a coal mine. 20 C.F.R. 718.305(a) (2010).
The new regulation states, In a claim filed by a miner, the party opposing
entitlement may rebut the presumption by . . . (i) [e]stablishing both that the miner does
not, or did not, have . . . [l]egal pneumoconiosis . . . [and c]linical pneumoconiosis . . .
arising out of coal mine employment . . . or (ii) [e]stablishing that no part of the miners
Continued . . .
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1319. The revised regulation requires proof that pneumoconiosis, as defined in the
statute, did not cause any part of the disability. See 20 C.F.R. 718.305(d)(1). Because
the statute defines pneumoconiosis as arising out of coal mine employment, see 20
C.F.R. 718.201(a), the practical effect of the revised rule is the same, and it therefore
applies to this case.
C. Did the ALJ Err in Finding that Mr. Goodin Is
Entitled to the 15-Year Presumption?
The ALJ determined and the Review Board affirmed that Mr. Goodin is entitled to
the 15-year presumption because he (1) worked for at least 15 years in conditions
substantially similar to underground mining and (2) was totally disabled from a
respiratory or pulmonary impairment. See 30 U.S.C. 924(c)(4). Substantial evidence
supported this determination.
1. 15 Years Working in Conditions Substantially Similar to Underground Coal
Mining
The ALJ found that Mr. Goodin worked as a coal miner for at least 25 years in
surface mining. The question in this petition is whether the ALJ properly determined that
Mr. Goodins surface mining working conditions were substantially similar to those in
underground mining.
______________________________________
Cont.

respiratory or pulmonary total disability was caused by pneumoconiosis . . . . 20 C.F.R.

718.305(d)(1) (2013).

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Mr. Goodin testified he held three different jobs while working in the mines
warehouse worker, equipment operator, and equipment oiler. Appx., Vol. I at 122-23.
He started as a warehouse worker for four to five years and then worked as an equipment
operator for three years. Id. As an equipment operator, he drove a truck with an attached
shovel, drove a water truck, and operated a machine called a scraper. Id. at 123.
Although he was located in the cabs of the vehicles, and some trucks had air filtration,
there was no way [to keep the dust out], even when you closed the doors, it was just like
a cloud of dust inside the cabs. Id. at 148. He also described that the truck was always
kicking up a puff of dust, and the dust would just hang in the air. Id. at 127, 148. When
the wind blew, it was like a sand blaster sometimes. Id. at 132. His duties frequently
required him to get in and out of the equipment and work outside for a period of time. Id.
at 125. Mr. Goodin next worked as an equipment oiler for nine years. During this time,
he serviced the equipment exclusively in the mine pit while the other equipment was
running, so it would get pretty dusty out there . . . . Id. at 130. Finally, he returned to
working as an equipment operator for eight to nine years.
The ALJ said Mr. Goodin had the burden of showing substantial similarity
between his surface and underground mining conditions, but must only establish that he
was exposed to sufficient coal dust in his surface mine employment. Appx., Vol. II at
270 (quoting Blakley, 54 F.3d at 1319); see also Summers, 272 F.3d at 480.
The ALJ found Mr. Goodin to be a credible witness and said, Based on my
experience with the testimony of underground miners, I find [Mr. Goodins] description
-20-

of the conditions in the strip mines where he worked to be substantially similar. Appx.,
Vol. II at 271.16 Because Mr. Goodin worked as an equipment operator and oiler for
more than fifteen years, the ALJ did not consider the working conditions in the
warehouse.
The ALJs decision and most of Antelopes arguments were based on the previous
version of 718.305(b)(2). Antelope argues that the substantial similarity standard
under that regulation, without additional guidance, is arbitrary and gives the Review
Board and this court no meaningful basis to evaluate the ALJs decision. Although we
find some merit in this argument, we conclude the revised regulation provides such
guidance.
The revised regulation states, The conditions in a mine other than an underground
mine will be considered substantially similar to those in an underground mine if the
claimant demonstrates that the miner was regularly exposed to coal-mine dust while
working there. 20 C.F.R. 718.305(b)(2). It instructs ALJs to find substantial
similarity if the miner was regularly exposed to coal dust. The clarified standard
regular dust exposureprovides sufficient guidance to measure similarity.
Under this standard, Antelope argues the evidence fails to show that Mr. Goodins
surface mine working conditions were substantially similar to those in an underground
16

The ALJ erred in basing his opinion on his personal experience with the
testimony of underground miners. This error is harmless, however, because the evidence
the ALJ properly accepted was sufficient to meet the regular exposure standard under
the revised regulation. See 20 C.F.R. 718.305(b)(2).
-21-

mine. We do not reweigh the evidence, but merely ask if there is substantial evidence to
support the ALJs determination. See Energy West, 555 F.3d at 1217.
Mr. Goodin testified at length about the working conditions in his various
positions.17 His testimony provided substantial evidence of regular exposure to coal dust.
We agree with the Review Board that there was substantial evidence to support the ALJs
finding that Mr. Goodin worked for at least 15 years in surface mining conditions
substantially similar to underground mining.
2. Total Disability From a Respiratory or Pulmonary Condition
The ALJ determined that Mr. Goodin is totally disabled from a respiratory
condition. Appx., Vol. II at 275. Although Antelope presented the ALJ with evidence to
rebut Mr. Goodins disability, it does not, as the Review Board noted, challenge the
ALJs determination of total disability. See id. at 287 n.3.
* * * *
For the foregoing reasons, we conclude the ALJ did not err in finding that Mr.
Goodin is entitled to the 15-year presumption. The Review Board properly concluded

17

Antelope does not dispute Mr. Goodins recounting of his working conditions.
It contends the air filter in the trucks protected Mr. Goodin from exposure to enough dust
to meet the standard. The evidence showed the dust was only kept out in one truck, which
Mr. Goodin only operated about ten percent of his time as an equipment operator. Even
in that truck, Mr. Goodin testified there was still dust in the cab because he was required
to get in and out of the truck frequently throughout the day. Appx., Vol. I at 147-48. The
ALJ, in weighing this evidence, concluded Mr. Goodin was regularly exposed to coal
dust even inside the trucks. Appx., Vol. II at 271. We find substantial evidence to
support this conclusion.
-22-

there was sufficient evidence to support the ALJs determination.

D. Did the ALJ Err in Finding that Antelope Did Not Rebut the Presumption?
The ALJ correctly stated that Mr. Goodin had the burden to establish by a
preponderance of the evidence that (1) he suffers from pneumoconiosis; (2) arising out
of coal mine employment; (3) he is totally disabled; and (4) his total disability is caused
by pneumoconiosis. Appx., Vol. II at 256; see 20 C.F.R. 725.202(d)(2),
718.204(c)(1). The ALJ determined Mr. Goodin was totally disabled (element (3)) and
the 15-year presumption satisfied the remaining three elements ((1), (2), and (4)).
Section 921(c)(4) states the Secretary may rebut the 15-year presumption only two
ways: by proving (1) the claimant does not have pneumoconiosis (legal and clinical), or
(2) the claimants impairment did not arise out of, or in connection with, employment in
a coal mine. 30 U.S.C. 921(c)(4). The Department has applied this limitation to both
the Secretary and mine operators like Antelope, and it has enacted regulations reflecting
this interpretation. See 20 C.F.R. 718.305(d)(1).
We first review (1) whether there is substantial evidence to support the ALJs
conclusion that Antelope failed to rebut the 15-presumption under these two methods.
We conclude there was. We then address (2) whether Mr. Goodin can prevail even if the
ALJ erred in determining that an operator such as Antelope is limited to the two rebuttal
methods. We conclude Antelope failed to rebut Mr. Goodins claim even without the
rebuttal limitations and therefore any error in applying the rebuttal limitations was
harmless.
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1. Did Antelope Rebut the Presumption under the Rebuttal Limitations?

We review the ALJs determination that Antelope failed to rebut the presumption
under the substantial evidence standard. See Hansen, 984 F.2d at 368. This analysis is
divided between the two rebuttal limitationsthe presence of pneumoconiosis and
whether pneumoconiosis caused the total disability.
a. Did Antelope rebut that Mr. Goodin has pneumoconiosis?
The ALJ concluded Antelope failed to rebut the presumption that Mr. Goodin
suffered from legal pneumoconiosis because the medical tests were inconclusive and
Antelopes experts were unpersuasive.18
First, as to the medical tests, the ALJ found the x-ray evidence in equipoise for
the existence of pneumoconiosis and not sufficient for [Antelope] to show that [Mr.
Goodin] does not have pneumoconiosis. Appx., Vol. II at 278. Although Mr. Goodins
CT scan[s were] not typical of pneumoconiosis, they did show that Mr. Goodin does
have some lung disease and Antelope failed to show why this lung disease was not
pneumoconiosis because Antelopes experts were not persuasive. Id. at 283.
18

As stated above, legal pneumoconiosis is any chronic lung disease or

impairment and its sequelae arising out of coal mine employment. 20 C.F.R.
718.201(a)(2) (emphasis added). [A] disease arising out of coal mine employment
includes any chronic pulmonary disease or respiratory or pulmonary impairment
significantly related to, or substantially aggravated by, dust exposure in coal mine
employment. Id. 718.201(b).
Clinical pneumoconiosis includes those diseases recognized by the medical
community as pneumoconiosis characterized by the deposition [of particulate matter]
caused by dust exposure in coal mine employment. Id. 718.201(a)(1) (emphasis
added).
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Second, as to Antelopes experts, Dr. Repsher stated that to an overwhelming

probability, any detectable COPD would be the result of cigarette smoking and/or
asthma, but not the result of the inhalation of coal mine dust. Id. at 263. Dr. Farneys
main reason that smoking and not coal dust caused Mr. Goodins lung disease is the
absence of a significant risk factor for coal dust. He worked on a surface mine, which
statistically has less risk. Id. at 266. The ALJ found the Antelopes experts reliance on
statistical probabilities undermined their ultimate conclusion that Mr. Goodin did not
have pneumoconiosis because they did not show why Mr. Goodin is not among the
cohort of those who suffer COPD from surface coal mining. Id. at 282-83. Antelope did
not show that Mr. Goodin did not have legal pneumoconiosis. It therefore did not rebut
the presumption.
We do not reweigh the evidence on appellate review, see Energy West, 555 F.3d at
1217, and conclude the record adequately supports the ALJs determination.
b. Did Antelope rebut that pneumoconiosis caused any part of Mr.
Goodins disability?
The ALJ, applying the rule-out standard, concluded Antelope did not show that
no part of Mr. Goodins respiratory disability was caused by pneumoconiosis. 20
C.F.R. 718.305(d)(1)(ii); see Appx., Vol. II at 282-83. To rebut the presumption using
this method, Antelope needed to rule out any connection between Mr. Goodins disability
and his pneumoconiosis. The relevant medical evidence is the same evidence the ALJ
considered in determining whether Antelope rebutted the presumption that Mr. Goodin
-25-

has pneumoconiosis.
Although the ALJ did not specifically analyze disability causation, he made
findings showing that Antelope did not rebut the presumption.19 The ALJ found that Mr.
Goodin suffered from a totally disabling respiratory condition. Appx., Vol. II at 276. He
found persuasive Dr. Roses conclusion that Mr. Goodin was totally disabled from his
respiratory condition, which, she said, resulted, at least in part from his previous exposure
to coal mine dust. Id. at 283. Dr. Rose recognized that multiple factors, including
smoking, caused Mr. Goodins lung condition, but she still concluded that coal mining
was a substantially contributing factor. Id. at 260-61.
Conversely, the ALJ found unpersuasive Antelopes evidence that smoking alone
caused Mr. Goodins condition. Id. at 282-83. The ALJ further said that even if
Antelopes evidence had persuaded him that smoking caused Mr. Goodins condition,
Antelope still had failed to show that coal dust had not aggravated or materially worsened
Mr. Goodins condition. Id. at 283 (Both doctors simply eliminate coat dust exposure as
a cause, but do not adequately explain why it could not have contributed to [Mr.
Goodins] lung disease in addition to his history of smoking.); see 20 C.F.R.
718.201(b).
Finally, the ALJ found that Antelope had not rebutted the presumption by
showing [Mr. Goodins] pneumoconiosis did not arise out of his coal mine employment
19

See Island Creek Ky. Mining v. Ramage, 737 F.3d 1050, 1061-62 (6th Cir.
2013) (holding ALJs brief reasoning on disability causation was sufficient).
-26-

as the definition of legal pneumoconiosis subsumes that finding. Appx., Vol. II at 283.
Because (1) the ALJ found that Mr. Goodin has legal pneumoconiosis, which Antelope
failed to rebut; (2) legal pneumoconiosis by definition arises from exposure to dust in
coal mining employment; and (3) Dr. Rose concluded that Mr. Goodins total disability
resulted in part from coal dust exposure, Antelope failed to rule out any connection
between Mr. Goodins pneumoconiosis and his total disability.20
We conclude the record supports the ALJs decision and the Review Boards
affirmance.
2. Was the ALJs Application of the Rebuttal Limitations Harmless Error?
Antelope argues the rebuttal limitations (1) may not be applied to operators, and
(2) impermissibly restricted its ability to prove and argue that coal mining did not
substantially contribute to Mr. Goodins disability. We do not decide whether the
rebuttal limitations apply to Antelope21 because any error in the ALJs invocation of the
rebuttal limitations was harmless. See 5 U.S.C. 706(2)(F) ([D]ue account shall be
20

Antelope argues the ALJ did not make a finding and explanation as to whether it
successfully rebutted the presumption that the disability arose from coal mining
employment. As explained above, although the ALJ did not provide a separate analysis
for this particular element, the reasoning and evidentiary analysis throughout the ALJs
opinion supports the ALJs holding that the presumption was not rebutted. This fulfills
the ALJs duty of explanation under the Administrative Procedure Act (APA) because
we can discern what the ALJ did and why he did it. Gunderson v. U.S. Dept of Labor,
601 F.3d 1013, 1022 (10th Cir. 2010) (quotations omitted).
21

The Sixth Circuit has addressed this issue. See Big Branch Res., Inc. v. Ogle,
737 F.3d 1063, 1069-70 (6th Cir. 2013) (citing Morrison v. Tenn. Consol. Coal Co., 644
F.3d 473, 479 (6th Cir. 2011) (holding the rebuttal limitations applied to the employer)).
-27-

taken of the rule of prejudicial error.); Hillsdale Envtl. Loss Prevention, Inc. v. U.S.
Army Corps of Engrs, 702 F.3d 1156, 1165 (10th Cir. 2012) ([E]ven if an agency
violates the APA, its error does not require reversal unless a plaintiff demonstrates
prejudice resulting from the error.); Gunderson v. U.S. Dept of Labor, 601 F.3d 1013,
1022 (10th Cir. 2010) ([W]e may overturn the ALJs decision only if the error . . .
prejudicially affected a substantial right of a party. (quotations omitted)).
The ALJ did not limit Antelopes presentation of rebuttal evidence, and the record
contains substantial evidence that Antelope did not rebut the four elements of Mr.
Goodins prima facie case. See Island Creek Ky. Mining v. Ramage, 737 F.3d 1050,
1061 n.4 (6th Cir. 2013) (stating the ALJ did not restrict the employers rebuttal methods
and the employer could not otherwise rebut the presumption); Mingo Logan Coal Co. v.
Owens, 724 F.3d 550, 555-56 (4th Cir. 2013) (same).22
Despite the ALJs finding that Mr. Goodin was entitled to the 15-year presumption
and that the rebuttal limitations applied, the ALJ still allowed Antelope to present rebuttal
evidence without restriction, and Antelope does not contest otherwise. The ALJ did not
even decide that the 15-year presumption applied until all evidence from both parties had
been submitted. Antelopes evidence was insufficient to rebut any of the presumptively
established elements of Mr. Goodins claim.
22

As stated above, the four elements of Mr. Goodins prima facie case are, (1) he
suffers from pneumoconiosis; (2) arising out of coal mine employment; (3) he is totally
disabled; and (4) his total disability is caused by pneumoconiosis. Appx., Vol. II at 256;
see 20 C.F.R. 725.202(d)(2), 718.204(c)(1).
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First, as to Mr. Goodin suffering from pneumoconiosis, we have already upheld

the ALJs finding that Antelope did not rebut this element.
Second, as to Mr. Goodins pneumoconiosis arising out of coal mine employment,
the ALJ noted that legal pneumoconiosis by statutory definition arises from coal mining.
Appx., Vol. II at 283; 20 C.F.R. 718.201(a)(2). Because Antelope failed to rebut the
first elementthe presence of legal pneumoconiosisAntelope also failed to rebut the
presumption that the pneumoconiosis arose out of Mr. Goodins coal mine employment.
Appx., Vol. II at 283.
Third, as to Mr. Goodin being totally disabled, Drs. Bodoni, Rose, and Farney all
agreed Mr. Goodin was totally disabled. Id. at 275. The ALJ discounted Dr. Repshers
opinion to the contrary because Dr. Repsher appeared to misunderstand Mr. Goodins job
duties and because he did not consider Mr. Goodins more recent test results. Id.
Fourth, as to pneumoconiosis having caused Mr. Goodins total disability,
Antelope needed to show that coal mining was not a substantially contributing cause to
rebut this fourth element.23 It did not do so.
The ALJ quoted the correct standard:
A miner shall be considered totally disabled due to pneumoconiosis if
[it] . . . is a substantially contributing cause of the miners totally disabling
respiratory or pulmonary impairment. Pneumoconiosis is a substantially
contributing cause of the minders disability if it:
23

The rule-out standard does not factor into this analysis because it is tied to the
rebuttal limitations.

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(i) Has a material adverse effect on the miners respiratory or pulmonary

condition; or
(ii) Materially worsens a totally disabling respiratory or pulmonary
impairment which is caused by a disease or exposure unrelated to coal mine
employment.
Id. at 274; see 20 C.F.R. 718.204(c)(1).24 As stated above, the ALJ found that Mr.
Goodin suffered from a totally disabling respiratory condition and that Antelope had not
shown that coal dust had not aggravated or materially worsened Mr. Goodins condition.
The record contains substantial evidence to support these findings.
The ALJ ultimately concluded that Antelope had failed to rebut any of the
presumptively established elements of Mr. Goodins claim and that Mr. Goodin has
established that he suffers from pneumoconiosis which is totally disabling and is caused
by his coal mine employment. Appx., Vol. II at 283.
After careful review of the record and the ALJs opinion and reasoning, we
conclude the rebuttal limitations did not affect the outcome. The ALJ did not limit
Antelopes evidence, and any alleged error was harmless because Mr. Goodin would
have prevailed even without the rebuttal limitations.
E. Antelopes Remaining Arguments
Antelope contends the Departments Office of Workers Compensation Programs
24

This regulation provides instruction when, as here, the claimants respiratory

condition is the product of both smoking and coal mine dust. The coal mine dust is a
substantial cause if it had a material adverse effect on the condition. See 20 C.F.R.
718.204(c)(1)(i).
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(OWCP) did not perform a complete pulmonary exam on Mr. Goodin because the
x-ray from the exam was unreadable. Antelope also maintains the ALJ erred in not
considering all of the medical evidence it presented.
1. Incomplete Pulmonary Exam
30 U.S.C. 923(b) states, Each miner who files a claim for benefits under this
subchapter shall upon request be provided an opportunity to substantiate his or her claim
by means of a complete pulmonary evaluation. A complete pulmonary evaluation
includes a report of physical examination, a pulmonary function study, a chest
roentgenogram [(x-ray)] and, unless medically contraindicated, a blood gas study. 20
C.F.R. 725.406. A report from a physical examination submitted with a claim must
include results from a chest x-ray that is conducted and interpreted pursuant to the
regulations in 718.102. Id. 718.104(a)(5). Section 718.102 provides that an x-ray
must be of suitable quality for proper classification of pneumoconiosis and cannot be
used as evidence of pneumoconiosis unless it abides by the provisions in the section. Id.
718.102.
Antelope argues that the OWCP failed to perform a complete pulmonary
examination on Mr. Goodin due to the poor quality of the chest x-ray from the OWCP
exam. Although the Department and Mr. Goodin agree that Mr. Goodin was entitled to a
complete pulmonary exam, they argue that Antelope cannot challenge the completeness
of the exam because the exam was for Mr. Goodins benefit in establishing his claim, not
for the operators benefit in defending the claim.
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Dr. Bodoni conducted the OWCP exam, including the chest x-ray interpretation.
He thought the x-ray showed complicated pneumoconiosis. 25 Appx., Vol. II at 258-59.
The ALJ discounted Dr. Bodonis findings because of his lack of expertise in reading
x-rays, his failure to rate the x-rays quality, and Antelopes rebuttal evidence that the
x-ray was unreadable. Id. at 277-78, 281. The ALJ stated that the x-ray, while arguably
readable, was not of good quality. Id. The ALJ therefore put little weight on Dr.
Bodonis reading and found the x-ray was neither positive nor negative for
pneumoconiosis. Id. Even so, the ALJ held the quality of the x-ray did not render the
entire examination deficient. Id.
Antelopes argument to the contrary fails. Mr. Goodin underwent five additional
chest x-rays, including one just five months after the challenged OWCP examination,
which Antelopes expert, Dr. Repsher, reviewed. Id. at 277. In fact, Mr. Goodin had so
many chest x-rays interpretations that the ALJ was not able to consider them all because
of evidentiary limitations.
Moreover, the chest x-ray concerns clinical pneumoconiosis, and the ALJ
determined that Mr. Goodin suffers from legal pneumoconiosis. Even if the x-ray had
been more readable and had shown no clinical pneumoconiosis, the ALJs determination
of legal pneumoconiosis would stand because legal pneumoconiosis can be found without
evidence of clinical pneumoconiosis.
25

Per Antelopes request, Drs. Wiot and Meyer, both B-readers, also reviewed the
x-ray and found it unreadable.
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2. Failure to Consider Medical Evidence

The BLBA states that all relevant evidence shall be considered . . . . 30 U.S.C.
923(b). Antelope argues that the ALJs failure to consider some of its medical evidence
calls for a remand for full consideration of the evidence.
Antelope contends the ALJ failed to consider three parts of the medical evidence.
First, it argues that because the ALJ did not discuss Dr. Meyers late-submitted
interpretation of a CT scan in the analysis section of his decision, he must not have
considered it. Second, Antelope complains the ALJ did not state what role Dr. Smiths
treatment notes played in the outcome. Finally, Antelope argues the ALJ failed to credit
Drs. Farneys and Repshers explanations that Mr. Goodins smoking, not his exposure to
coal dust, produced his respiratory condition.
These arguments lack merit. The ALJ mentioned all of this evidenceDr.
Meyers interpretation of the CT scan, Dr. Smiths treatment records, and the reports and
depositions of Drs. Farney and Repsher. Appx., Vol. II at 255, 262-67. That the ALJ did
not discuss every aspect of the evidence in his analysis does not mean he did not consider
the evidence. See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (The record
must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required
to discuss every piece of evidence.).
Moreover, Antelope does not persuasively argue that this evidence would have
affected the outcome. As with the challenged x-ray discussed above, the CT scan
interpretation could only rebut evidence of clinical pneumoconiosis, and the ALJ found
-33-

Antelope had failed to meet its burden of rebutting legal pneumoconiosis. The treatment
notes also only go to clinical pneumoconiosis: Dr. Smith wrote, The radiographic
picture is certainly not typical for Coal Workers pneumoconiosis but the patient may
have a slowly active fibrosis in addition to the emphysema. Appx., Vol. II at 267.
Antelopes arguments are more a matter of disagreement with the ALJs
assessment of the evidence as opposed to whether he considered the evidence at all. We
may not reweigh the evidence but can only determine whether substantial evidence
supported the decision. Energy West, 555 F.3d at 1217. [T]he task of weighing
conflicting medical evidence is within the sole province of the ALJ. Hansen, 984 F.2d
at 368.
III. CONCLUSION
Based on the foregoing, we deny Antelopes petition for review.

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